Criminals get all the rights: the sociolegal construction of different rights to die.

• Author: Rountree, Meredith Martin
• Position: Continuation of III. Social Influences on Rights to Die through Conclusion, with footnotes, p. 175-202

1. AMONG THE VERY ILL

   Self-killing has a long history of state proscription, though desires to die have become substantially medicalized as self-killing is now more likely to be seen as potentially pathological rather than unpatriotic. (117) The sociolegal framework undergirding medical decisions hastening death reflects a number of questions about the appropriate roles for individuals, medicine, government, and God to play in ending life, as well as the relationships between desires for death and mental illness. These questions are situated in a particular historical moment that is shaped by the freighted history of euthanasia movements, the heart-rending realities of modern medicine's capabilities, the revolution in the doctor-patient relationship, and the emergence of the civil rights discourse. The ascendance of the rights framework in medical decisionmaking enabled euthanasia advocates to recast their advocacy of hastening death as a type of right, where previously it had been seen as a vehicle for social improvement. In addition to being politically expedient, it also fixed the legal question within a framework that requires investigating and balancing competing interests.

   While hardly the first legal case to present the question of discontinuing or foregoing medical treatment, Karen Ann Quinlan's case gripped the public imagination. It is widely cited as the beginning of the modern American discussion about the right to die. (118) Newsweek, which featured her case as its cover story in November 1975, economically invoked common anxieties surrounding decisions to hasten death. (119)

   The article first outlined the primary legal dispute: after recognizing that his daughter would not recover from a persistent vegetative state, Karen Ann Quinlan's father sought to be appointed her guardian in order to ask the hospital to turn off the ventilator that supported her breathing. The hospital refused. The parties went to court. The story then quoted one lawyer arguing that Quinlan was not "brain dead" and that by removing the ventilator, the court would be "just extinguishing] life because she is an eyesore." (120) Another asked, "Where do we draw the line?" (121) Nazi Germany's practice of euthanizing "cripples, mental incompetents, epileptics, the elderly and others held to be socially undesirable" was invoked, (122) and a physician recalled an infant born with a treatable but highly disfiguring condition. The child was allowed to die, and '"Nobody said a word,' according to the ... doctor. 'I think it's because we live in an era of the Body Beautiful, so the sight of a kid with almost nothing below the waist gave everybody pause.'" (123)

   The case was also described as making public a "private and personal plight." (124) Doctors expressed concern about legal supervision over (and possible sanctions for) medical decisionmaking, as well as the professional and ethical conflicts created by requests to hasten death. At the same time, medical advances were blamed for creating the painful situation in the first place. New technologies permitted life to continue, even as definitions of life and death shifted. Whether because of the mysteries of the human body or medical progress, terminal prognoses were also called into question.

   1. Twentieth-Century Euthanasia Movements

      The contemporary so-called "Right to Die" and "Death with Dignity" movements were not the first time Americans organized to promote euthanasia. (125) Prior euthanasia advocates rejected the notion of spiritual transcendence in suffering, and their enthusiasm for science and human control led advocates to embrace euthanasia as part of a larger eugenics program of social improvement. Not only could those suffering find a peaceful death, but those burdened by severe mental or physical impairment could be killed as painlessly as possible, for their own good and the good of the larger society. (126) Nazi euthanasia practices (and eugenic intent) exposed the dangers state-sanctioned euthanasia could pose for the socially vulnerable and marginalized, however, and consequently discredited the American movement's framework of euthanasia as a tool for social improvement. As Americans learned of eugenics-inspired euthanasia programs conducted by German doctors, the American euthanasia movement became quiescent. (127) The "rights" framework, however, emerged in the wake of the civil rights movements of the 1960s, and offered a powerful new discursive tool. (128)

   2. The Role of Organized Medicine in Contemporary Movements

      The rights framework reconfigured the American euthanasia movement from one oriented toward the good of society to one promoting the autonomy and dignity of the individual at a time when patients were demanding a more active role in their medical care. (129) In addition, it created an avenue into court, an institution capable of putting pressure on the medical profession. The euthanasia movement has been credited with improving pain management specifically and palliative care more generally. (130) At the same time, the legal rights-based framework accords doctors a legitimate presence in legal proceedings. Their ethical responsibilities and professional training, as well as their prognoses, position them as important interlocutors as courts decide these claims. Relatedly, the patient's demands for autonomy--at the heart of the right to die conceptual framework--are dialogically related to the physician's demands to direct how medical technology is to be used.

   3. Fear of the Slippery Slope

      Concerns about a slippery slope, where euthanasia is first intended to offer a choice to the suffering individual with a terminal illness, but then becomes a decision made by others for those not similarly afflicted, have both an historical and contemporary foundation. Historically, not only did the Nazi example demonstrate how socially vulnerable people could become the targets of nonvoluntary euthanasia, but statements by advocates for the American euthanasia movement at the beginning of the twentieth century clearly indicated they saw legislation permitting voluntary euthanasia for those facing death was simply a first step toward eventual embrace of nonvoluntary euthanasia for "monster" babies and individuals with mental and intellectual disabilities. (131)

      The New York Task Force (132) expressed concern about a slippery slope, in light of the tension in compassion arguments:

      Policies limiting suicide to the terminally ill, for example, would be inconsistent with the notion that suicide is a compassionate choice for patients who are in pain or suffering. As long as the policies hinge on notions of pain or suffering, they are uncontainable; neither pain nor suffering can be gauged objectively, nor are they subject to the kind of judgments needed to fashion coherent public policy. (133) Reports from European countries where euthanasia is legal demonstrate the Task Force's concerns were not farfetched. While disputed, some studies suggest that in the Netherlands at least some physicians have engaged in unsolicited euthanasia and complied with euthanasia requests from patients suffering from depression, but no physical ailment of any kind, much less one that would cause incurable physical deterioration. (134) A recent study notes that a group of Belgian physicians favoring euthanasia also tend to support extending euthanasia to minors "who can value their interests." (135)

      The New York State Task Force also expressed concern about a disproportionate impact of legalized euthanasia on poor people or members of minority communities. In addition to disparities in access to medical and mental health care, the Task Force noted that care "will be practiced through the prism of social inequality and prejudice that characterizes the delivery of services in all segments of society, including health care.... [Physicians] are not exempt from the prejudices manifest in other areas"' (36) This raises the prospect that institutional structures and professionals may encourage disadvantaged individuals to seek euthanasia.

   4. Contemporary Legal Safeguards

      Vermont's, Washington's, and Oregon's "Death with Dignity" statutes seek to meet at least some of physicians' professional concerns by permitting physician-assisted suicide (where the physician only prescribes a lethal dose of medication), but not euthanasia (where the physician administers the lethal dose), and by requiring that the patient have "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months," as attested to by two physicians. (137) In addition, the Oregon and Washington statutes explicitly recognize depression can play a role in desires to hasten death, and Vermont, Oregon, and Washington limit physician-assisted suicide to those whose judgment is not impaired by mental illness. (138)

2. AMONG THE DEATH-SENTENCED

   1. Historical Context

      Conventional legal inquiry into appeal waivers usually begins with Rees v. Peyton: does the prisoner have the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." (139) Melvin Rees himself sought to withdraw his Supreme Court appeal in 1965, as support for the death penalty waned. (140) Having failed to coax the parties into a negotiated resolution of the case, the Court ordered the lower court to adjudicate Rees's competence. (141) After multiple evaluations, the lower court found Rees incompetent, and the Supreme Court took no further formal action on the case. (142) Only after Rees's natural death in 1995 did the Court dismiss his case. (143)

      While this legal standard is widely cited, the contentious and insistent Gary Gilmore we saw at the beginning of this...